Thursday, December 09, 2010

Aaron Houston, the Executive Director of Students for Sensible Drug Policy, has written the cover story of the next issue of The Nation magazine.

It is a sophisticated overview of the evolving political legitimacy of the movement to legalize the social use of marijuana.

California's Proposition 19 received 46.5 percent of the vote, more votes than any of the Republican state-wide candidates. A post-election poll reported that about 31 percent of those who voted for the Republican candidate for Governor voted for Prop. 19. And about 30 percent of those who voted against Prop. 19, actually favor legalization of marijuana, but did not like the language of the proposition. Even the leading spokespersons opposing Prop. 19 determined they had to concede that they supported legalization but argued that this proposition was a legal nightmare, etc.

Aaron describes the enthusiasm that SSDP activists are bringing to the planning of 2012 ballot initiatives in Colorado as well as California.

American Prospect magazine has just published a special report on "Mass Incarceration."

Mark Kleiman writes that African-Americans and the poor suffer from both too much punishment, and not enough effective crime control. He argues, as he does in his book, When Brute Force Fails, that well-designed community control programs work. That means that there must be sanctions for breaking the rules quickly imposed. He argues that effective crime control involves finding a tipping point in changing the behavior of potential offenders by concentrating the sanctions. Instead of random punishment, people will conform if they know they will be punished.

An example of this is the behavior around speed cameras. I drive by a half dozen or so locations in a typical week where there are speed cameras. Everyone slows down, knowing that there, at least, there is a sanction for speeding. Typically these are near schools. However, when drivers know that speeding enforcement is random, as it is on most highways, the speed limit is practically nonexistent. Mark is a proponent of Operation HOPE, a probation enforcement program in Hawai'i, pioneered by Judge Steven Alm. (As a matter of prideful disclosure, CJPF helped finance the peer review of Mark's book.)

Michelle Alexander's outstanding article is a modification of a Constitution Day speech about the role of mass incarceration in keeping people of color, primarily African-Americans in second class status in the United States. Her speech introduces her outstanding new book, The New Jim Crow. The primary driver of mass incarceration is our prohibition drug policy, and she argues that anyone concerned with racial justice now, must be working to end the "war on drugs."

Vanessa Gregory writes about the failings of the indigent defense system in America. Her critique is right on. She notes the value of training for the young attorneys who work as public defenders. I served as public defender for three years before I moved to Washington, D.C. Attending the NORML Legal Committee continuing legal education programs in 1976, 1977, and 1978 were invaluable.

Kara Gotsch, from The Sentencing Project, argues that there is an emerging bipartisan movement for less severe sentencing.

Journalist Sasha Abramsky writes the now familiar story of "problem solving courts," typified by drug court, which data shows are effective in changing behavior. He is careful to relate the criticisms of the National Association of Criminal Defense Lawyers that such courts are often cavalier in their lack of consideration of the the constitutional rights of accused persons. Perhaps what is ultimately most disturbing is the very small number of defendants who benefit compared to the large population of drug dependent or otherwise law-breaking that could benefit from treatment, counseling, job training, etc.

Steven Hawkins from the NAACP writes with great power about the enormous impact on public education due to the increased expenditures on prisons. In 2008-2009, for example, in two-thirds of the states, there was more spent on corrections and less spent on education than the year before.

He tells how in Philadelphia, PA in 2009 as the school system struggled to deal with a $147 million shortfall, the taxpayers were spending $290 million to keep the young people from 11 Philadelphia neighborhoods in prison.

As you think about how your tax dollars are going to be spent this year, and how services important to you are likely to be cut -- from ambulances, to public schools, to parks, to pot hole repair -- simply consider how much money is being wasted in old-fashioned criminal justice programs. Don't let your public officials get way with saying, "We are going to have cut everything, but of course, not public safety." Public safety is a field of public service that is just as incompetently and inefficiently managed as any other -- if not more so!

Wednesday, November 24, 2010

DEA announced it is going to ban 5 synthetic cannabinoids using emergency powers Congress granted in the Comprehensive Crime Control Act of 1984 (21 U.S.C. 811(h)). (Yes, I handled this legislation.)

Does the government have any scientific burden of proof to demonstrate danger or harmfulness before it bans a product?

What, exactly, is the evidence that these synthetic cannabinoids are harmful? There are news reports that some poison control centers report that they have had telephone calls from persons saying that they are having some kind of reaction to ingesting something that they report to be K2 or Spice. Of course, the callers have no certainty about what they in fact have ingested. These are completely unverified anecdotes by persons who are in fear.

Considering that K2 and Spice are legal and cannabis is illegal, some persons may be selling cannabis claiming it is K2 or Spice to minimize their risk of arrest, and the demand is probably higher since buyers will believe what they have acquired is not contraband and won’t get them into trouble. An unethical drug seller may be selling Cannabis as K2 or Spice to maximize profit.

Considering that a feature of K2 and Spice is that they supposedly are not detected in the usual drug screens of probation departments or the military, K2 and Spice are much more valuable to many customers that cannabis. Again, an unethical drug seller may be selling Cannabis as K2 or Spice to maximize profit. Of course this lack of routine and inexpensive detectability really annoys drug court judges, probation officers, etc.

Someone may have a joint or pipe passed to them and told it is K2 or Spice, but it may actually be Cannabis.

It is entirely plausible that some or many of those who are calling poison control centers with reports of adverse reactions are reporting reactions to strong forms of Cannabis. After all, the government says there are thousands of reports of adverse reactions to very potent forms of cannabis every year, and certainly some of those result in calls to poison control centers.

To summarize, the government is attempting to ban a legal substance on the basis of unsubstantiated second hand claims that unidentified materials are causing unspecified and unquantified harms.

It may be the K2 or Spice are causing problems, but the government has not offered any legitimate scientific evidence that this is the case.

Anyone who has picked up High Times over the past 25 years or so, has encountered ads for “legal highs.” Most readers assumed that these ads are bogus rip offs. Many people have also assumed that K2 and Spice were equally bogus rip offs. DEA’s action today will establish K2 and Spice as drugs that people can get high on. The ban is being reported from The Wall Street Journal to WTOP radio.

DEA has no evidence that K2 or Spice is harmful, but state legislators are passing bans based on unverified anecdotes. DEA is being embarrassed by questions about why it has not banned them.

DEA’s ban is being conducted in manner that is almost exactly like the situation in 1985 when DEA banned MDMA on a temporary basis. Then, instead of following the scientifically based administrative process for determining appropriate scheduling (21 U.S.C. 811 (a) - (c)), DEA used its power to ban a chemical on a temporary basis. At that time, DEA’s action took an almost completely unknown compound, used in a very small subculture, and through its press releases and banning transformed it into a global brand, ecstasy! Instead of following the advice of doctors and scientists and scheduling MDMA as a medicinal compound, DEA’s emergency scheduling on schedule I glorified the potency of MDMA. DEA is shamefully, once again advancing its institutional agenda at the expense of public safety and due process of law.

“Prosecutors construct plausible narratives of criminal activity that satisfy the evidentiary standards of trial law procedure, convince jurors to convict defendants, and secure additional resources to continue their efforts. Policymakers create memorable narratives of organized criminality that capture the public interest, build support for bureaucratic and legislative agendas, and communicates messages laced with political symbolism that the United States is fighting, and ultimately winning, a war against drugs.”

DEA could not figure out a strategy to control K2 or Spice, and fell back on their traditional failed strategy. Sadly, this is the completely expected reaction of a bureaucracy like DEA. This action is another example of why Michelle Leonhart is not clever enough to be a modern, effective Administrator of DEA.
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Monday, November 08, 2010

With the the bloodletting of the drug prohibition business and cartel-government wars in Mexico, Newsweek looked back on the "never-ending drug war" on October 29, 2010. It noted the futility from the "balloon effect" of drug supply enforcement against as a means to control drug availability in the U.S.

After reciting the latest facts that document the well known problems of the continuing production of drugs in Latin America and the Carribean, however, they noted what may be the signs of a realistic policy:

Over the past 18 months there has been an unprecedented shift among U.S. policymakers away from focusing on mostly drugs in one country or another to a comprehensive, regionwide strategy to strengthen law enforcement, the judiciary, and prison systems. “You’ll always have drug smuggling in this world,” a senior State Department official told NEWSWEEK. “The question is how do you make that manageable so it doesn’t threaten the state?”

Make the problem manageable. Yes! At last we may becoming clearer about establishing the rule of law as a goal independent of simply "warring" on drugs.

On September 30, 1989, Law Enforcement News published my op-ed, "Harm management, not drug- free nation, should become USA's anti-drug objective." This was not an appeal for "harm reduction" public health policies, but to re-conceptualize what we were doing about all aspects of drugs to shrink organized crime, reduce user-related street crime, and protect kids in a half dozen ways. "We need to approach this issue as managers, not moralists," I wrote.

On April 13, 1991, I addressed the Board of Governors of the Colorado Bar Association. My remarks were titled, "What Should We Do About Drugs? Manage the Problem Through Legalization." They were reprinted in Vital Speeches of the Day on August 1, 1991. I called my program "comprehensive intoxication management," and set forth Ten Principles Of Intoxication Management.

This paper was expanded for the May 15, 1995, Atlanta conference, "Cities Against Drugs." [Aside: That conference was sponsored and hosted by Atlanta Mayor Bill Campbell, then posturing as an anti-drug zealot. In October 2008, Campbell was released from Federal prison after serving 26 months for felony tax evasion.]

It is very pleasing that after so many years of trying to establish a new framework for a drug policy, senior officials in the State Department are telling Newsweek (anonymously) that they recognize that management of the drug problem seems to be the way to go.
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Wednesday, November 03, 2010

In my speeches about drugs, for many years, I have often started by asking the audience about caffeine as a drug. Show of hands -- how many of you have ever had a caffeine overdose? I'll ask. I'll note the symptoms: grinding teeth, nausea, and rapidly beating heart. I suggest we call the ceramic or disposable "coffee cups" that many audience members are using a type of drug paraphernalia.

I try to build self-awareness around our near-universal intention to use coffee for three typical drug-use motives: (1) for chemical stimulation before a demanding task; (2) to revive ourselves from morning sleepiness or later-in-the-day drowsiness; and (3) to avoid the common withdrawal symptom of intense headache by all of us who are genuinely addicted to caffeine. (I usually leave out the common drug effect of stimulating the bowels.)

I usually mention that psychotic episodes can be experienced by those susceptible to large doses of caffeine to illustrate that even compounds that are benign as widely used can be "dangerous" under some circumstances.

The premise I am trying to establish is that in the law-abiding, hard-working, straight society most of us are part of, we are (1) routinely exposed to potentially risky drugs, (2) familiar with those risks, having learned about them through personal experience, and (3) addicted to the drug. The conclusion I want to draw is that as a society we manage those risks through cultural norms. We typically drink caffeine deliberately for stimulation, and many of us consciously stop later in the day in order to avoid interfering with sleep. Until recently, we consumed coffee and tea in fairly standardized dosage vessels, and colas in 12 oz. bottles or cans. (The coffee and espresso craze has thrown that out.) And even though caffeine content is not stated on beverage labels, we operate on our experience and hope that the caffeine concentration is standardized in coffee, tea or soft drinks.

Nevertheless, even though our behavior in the use of caffeine reflects an understanding of it as a drug, we are not often conscious or aware that we are using it as a "drug" because the concept of "drug" is so stigmatized and caffeine use is so normal.

While considering these risks over the years, I don't think I ever thought of caffeine as potentially lethal in the overdose sense. I had never read of such a case . . . until now.

ABCNEWS.com reports on the death in Britain of Michael Lee Bedford who swallowed two teaspoons of pure caffeine with an energy drink. They report a toxicology estimate that this quantity of caffeine was equivalent to the amount of caffeine in 70 Red Bulls!

Of course this is a tragedy, and a preventable tragedy.

ABCNEWS also reports that there is actually little research on the effects of this compound. That should be corrected. Caffeine is not only ubiquitous in our diet -- in coffee and tea, of course, colas, but Mountain Dew(R) and other "soft drinks" -- but it is routinely offered to children.

Not surprisingly Michael's grandmother is quoted as proposing a ban! (But she may have been asked a leading question by a reporter.) Being somewhat cynical, I can imagine she may be thinking about whether she should start a foundation to ban it so that her grandson's tragic death "won't be in vain."

The old mantra is "If only one life can be saved if we ban it, it is worth it." Right? This is a little like the campaign of the Delaware family to ban Salvia because their son committed suicide after using Salvia and had no one to talk with about the intense experience he had.

In some sense this desire to ban is like the current cry to ban "Spice," "K2" or other "synthetic marijuana." We don't have any real research about its effects or dangers -- long-term or short-term; we know that "drug users" use it and that it is not detected by cheap drug tests. What happens is that some people, who may lack good advice (or lack good judgment) use it wrongly, or use something that they were told was Spice or K2, have a bad reaction to whatever they used, and call the poison control center to report that they were poisoned by "spice." No one knows if they actually used "spice" or catnip and PCP sold as "spice." But those anecdotes become, in the hands of ambitious legislators and their law enforcement allies, "evidence of the drug's harmfulness," and the flimsy justification for banning it. This abridgment of liberty, without evidence, is called foresight. If just one life is saved...

Well, perhaps Michael's grandmother or someone can parlay his death into a run for Parliament. "Ban it!" -- such a typical, knee-jerk over-reaction.

Before we decide to heed the cry to ban caffeine powder, or even "regulate caffeine," we should more fully research its effects.

We need better education about about effects, dosage, etc. but it seems that we lack the actual scientific basis for such education.

To be constructive, Michael's grandmother could push for government-funded research, or campaign to get the caffeine industry to research the effects of their products. She could push for expanded education about caffeine use.

In the interim, we could have some labeling with some kind of warning. The education doesn't have to be in school. It could be a cartoon or a rap or a video.

"Don't be a guinea pig! Medical science has not yet determined that how much caffeine you need to take to hurt yourself. Does the idea of taking at once dozens of doses of a powerful drug make sense? BTW, some research shows that taking too much caffeine doesn't lead to more alertness, but to drowsiness, so maybe you shouldn't take a lot anyway!"

Tuesday, October 26, 2010

Adam Isacson observes that the U.S. delegation visiting Colombia today is not talking about drugs.

Meanwhile, the rivers of blood in Mexico's drug trafficking plazas continue to flood.

Some people ask what lessons, if any, Colombia's experience fighting drug trafficking violence has for Mexico.

In my view, first, the big problem is not drugs, per se, but the desire and ability of powerful criminal organizations to use extraordinary volumes of violence, and bribery, to create impunity from the criminal justice system. It happens that their big source of funds to finance the violence and bribery is the mountain of cash obtained from selling drugs to the United States and Europe. That certainly suggests the limits of prohibition as a drug regulation and control strategy. But the danger to a society that the justice system is made impotent by the society's worst criminals is a subversion of an essential characteristic of a state. The state is supposed to protect against "traditional," predatory crime at least, and if such crimes take place, to investigate, prosecute and punish such offenders without favor.

Sadly, throughout history there have been instances in which some criminals escape investigation and punishment, often for years. I was thinking of the Tweed Ring in New York City in the 19th century when the city government was captured by the criminals who controlled the Tammany Hall Democratic organization. In many cases, society finally responds.

But I can't think of any instance in which the attack on the justice system has been so open and intense in the effort to neutralize it, as we are witnessing in Mexico. In Italy, there were times when various organized crime groups attacked investigating magistrates, prosecutors, police and judges. And in Colombia, there were similar attacks on Attorneys General, judges, journalists, etc. But the situation in Mexico is worse, with much worse bloodshed.

But the lesson of Colombia, I think, is that civil society was disgusted and horrified by the bombings and kidnapping, and got behind a government that would fight back.

In Mexico today, the government is fighting back, but their effort lacks broad public support. This is because, in part, the police have historically been utterly corrupt and utterly inept, and the public is not sympathetic to the police.

In Mexico, almost anyone with any property can be kidnapped. and the victim's often suspect that the police may be complicit. In any event, the family of victims's have little desire to call the police for help -- indeed they often urge the police to stay out of the case.

I fear that we may be at a tipping point in Mexico in which organized crime is about to acquire complete impunity. At El Diario (the principal newspaper in Ciudad Juarez), after the local DTO power killed one of their young photographers, the editors appealed to the criminals for guidance on what they could print, noting that the criminals were now the "authority" in the city.

Ciudad Juarez is a city of 1.5 million persons, about the population of Phoenix or Philadelphia! Another words, it is a big city.

Mexico's civil society -- its businesses, churches, educators, etc. -- needs to come together to demand that the institutions of the police, prosecutors, courts and prisons be strengthened. They need to commit themselves to getting the government mobilized.

The U.S. has a direct interest in this fight. Mexico is not merely a nation on our border. Mexico's people and our people are linked, our cities are linked, and our futures are linked. The triumph of Mexican criminals over their justice system gives those criminal organizations a base for supporting crime in hundreds of American cities.

This is not something that can be addressed by building a bigger fence, or "hardening" the border. Every day a million people cross the border, and countless trucks filled with goods.

Legalizing and regulating drugs in one important tool for taking power away from the Mexican criminals. But it will not cause them to evaporate. Mexico and the U.S. must become partners in strengthening the integrity of Mexican police, and improving their investigation sophistication. For decades they have relied on torture which is absurd. Training in investigation, paying adequate salaries, and having a society that demands public safety are the necessary building blocks.

Amazingly, Colombia was able to transform itself in many respects, and as bad as our drug policy is, we were able to help.

Monday, October 11, 2010

Last Thursday and Friday (Oct. 7-8), the National Association of Criminal Defense Lawyers hosted its Ninth Annual State Criminal Justice Network Conference at the American University Washington College of Law. Over one hundred advocates, service providers, lawyers, judges and scholars exchanged ideas about many key criminal justice issues. Much could be said of the many thoughtful programs, but I was struck most forcefully by comments about drug court on Friday morning.

I think that drug courts are a useful reform, and can manage treatment resources for drug addicted or alcoholic offenders to effectively treat them. But the few drug courts that I have visited -- with their focus on hard core addicts who are repeat serious offenders -- may not by typical. One drug court statistician pointed out that most drug court clients have little criminal history, that marijuana is the drug they most commonly have used, and that they have little need for treatment. And no matter what you say about drug courts, they are an intense use of scarce judicial resources and handle a tiny fraction of the many persons who commit crime and need substance abuse treatment. They can never be a solution because their scale will always be very small.

However, a question was posed to Judge Darryl Larson, Chair of the Oregon Criminal Justice Commission, who was passionately defending drug courts. He was asked, Does drug court use punishment to address the disease of addiction?

He responded by saying that addiction is a lie, the whole life of an addict is a lie, and that the addict must deal with reality. If I send someone to jail for two days, I did not intend it as a punishment. They need a swift and certain result.

Judge Larson had been a prosecutor of 17 years and a judge for 18 years.

As I heard him deny that sending a person to jail is a punishment, I realized that I was listening to someone who sounded like he is addicted to power and is in denial about how that power is used. As the person with power, he decides if your life is a lie, and he gets to create reality for you. (Isn't the creation of reality what God does?) Everyone else may call that "reality" punishment, but it is not punishment because he didn't intend it as punishment.

How else would a power addict describe use of his drug? If the judge is right about addiction, lying and denial, doesn't his refusal to acknowledge that his jailing a person is punishment amount to a naked denial?

In his silence, he tries to rule out the fact that ONDCP's Youth Anti-Drug Media Campaign has been found -- repeatedly by ONDCP's own contractors and the GAO -- to have been counterproductive in reducing teen drug use. Nevertheless, Director Kerlikowske asked for $21.5 million more for this program in 2011 than in 2010.

In Kerlikowske land, he omits to mention the fact that the Federal government's Safe and Drug Free Schools Program was so effective, the ONDCP proposed that it be completely eliminated in FY 2011.

Isn't it more plausible that drug education -- or miseducation -- programs which have been proven to be failures might have something to do with an increase in the use of marijuana?

Teenage marijuana use went down for many years as more and more states passed medical marijuana laws starting in 1996. Medical marijuana and its advocacy have nothing to do with teenage marijuana use.

Daniel Pacheco, a student from Colombia and a member of the Georgetown University Students for Sensible Drug Policy chapter, respectfully challenged Gil Kerlikowke, Director of the Office of National Drug Control Policy, on Sept. 16, 2010 at the National Press Club, on the suggestion of the past Presidents of Colombia and Mexico, that legalizing drugs would defund the violent cartels that are ravaging Mexico. See the YouTube clip here.

Kerlikowske said a couple of times that the cartel revenues from marijuana were a "small part" of their income, and that taking away this revenue would not transform these criminal organizations.

Pacheco, politely retaking the microphone, noted that revenues from marijuana amounted to 60 to 70 percent of the cartel's total revenue -- not a small part -- and that to summarily dismiss the suggestions of the former Presidents was disrespectful to the victims of the cartel violence.

Kerlikowske then said that the 60-70 percent estimate was released by ONDCP in 2006, based on 1997 data, and therefore was out of date. He offered no better, more recent number or alternative number, and thus simply repudiated data and analysis generated by his own office.

Wednesday, September 01, 2010

He argued that the violence in Mexico is largely in the little populated North, and does not threaten the state. The violence is for control of the profitable drug trafficking routes, but does not threaten the Mexican heartland.

The drug trade is so profitable it enriches Mexican banks and institutions because most of the profits remain in Mexico. Thus Mexico has little incentive to stop the drug trade -- it is not in Mexico's national interest.

Friedman acknowledged that the U.S. can:

1. accept the status quo.

2. figure out how to reduce drug demand.

3. legalize drugs.

4. "move into Mexico in a bid to impose its will against a government, banking system and police and military force that benefit from the drug trade."

He concluded, "The United States does not know how to reduce demand for drugs. [See Peter Reuter's recent paper "How Can Domestic U.S. Drug Policy Help Mexico?" on this point.] The United States is not prepared to legalize drugs. This means the choice lies between the status quo and a complex and uncertain (to say the least) intervention. We suspect the United States will attempt some limited variety of the latter, while in effect following the current strategy and living with the problem."

"If . . one accepts the idea that all of Mexican society benefits from the inflow of billions of American dollars (even though it also pays a price), then the Mexican state has not failed -- it is following a rational strategy to turn a national problem into a national benefit."

So when might American policy makers begin to consider that control of these profits remain in criminal hands and will be used for criminal purposes?

Thursday, August 19, 2010

At their annual meeting in Sacramento, CA on Aug. 19, the National Black Police Association endorsed Proposition 19 and the legalization of marijuana.

This is particularly significant because these cops have historically had to struggle to be taken seriously by their peers in the station house. This action by an organization that represents tens of thousands of active duty police officers is an important step toward establishing marijuana legalization as a legitimate position in the law enforcement community.

LEAP's new Executive Director Neill Franklin, a former patrol officer in Baltimore, Maryland, played a key role in speaking to the NBPA membership.

Wednesday, August 18, 2010

The Daily Caller reported August 18,2010 that the White House is sticking with the nomination of Michelle Leonhart, who has been the Acting Administrator of the Drug Enforcement Administration since 2007, and Deputy Administrator (the No. 2) since 2003. A few weeks ago, numerous groups called for the President to withdraw her nomination.

The bigger issue is that Leonhart has demonstrated that she is unable and unwilling to take on the major job of the next DEA Administrator, which is to work with the states in developing medical marijuana laws that make sense. During her entire career in DEA management -- since 1997 -- she has acted as though the calendar were stuck on October 1996 -- before the medical marijuana law that passed in November 1996 and received one million votes more than Bill Clinton did. Her leadership of DEA has ignored the medical marijuana laws passed in state after state after state, and ignored the hundreds of scientific studies conducted that establish the various medical benefits of marijuana.

On the key challenge that the DEA has to address going forward, she is utterly unqualified. That the Obama Administration does not recognize this is very disturbing.

I suspect that what compelled Obama to pick Leonhart is that he could not find anyone competent who was willing to take the lead in reforming an antiquated agency staffed with zealots committed to a hopeless mission. The rumor in D.C. is that everyone they asked turned down the offer.

Tuesday, August 10, 2010

My old friend Mark Kleiman (we were in college together and have stayed in close touch over years since we are both very interested in drug policy) had an op-ed in Los Angeles Times on July 18 on Proposition 19. Mark is usually brilliant, and great at developing "thought experiments." Mark is also a contrarian. He loves to argue, especially against the conventional wisdom. But unless I've misunderstood him, I think he's being sneaky in this piece.

His main point is that California voters can't "legalize a federal felony," namely growing or selling marijuana.

However, I think he misses the main effect of Proposition 19 which is to legalize adult personal possession and personal cultivation of marijuana in a plot of no more than 25 square feet (a five foot by five foot little garden) under California law, and permit a person to transport their own marijuana. It will remain a crime for anyone to provide marijuana to a person under 21 years of age, and serious crime to distribute to kids under 18, with very heavy penalties for distributing to children under 14.

For those adults who simply use cannabis on social occasions -- the overwhelming majority of users -- this amounts to functional "legalization." The police who arrest the average Californian who uses marijuana is operating under state law, such as a deputy sheriff, a city police officer, or a California Highway Patrol officer. Proposition 19 will stop those arrests.

The truth of Mark's point that "California voters can't 'legalize a federal felony,'" depends, to paraphrase Bill Clinton, on what "can't" means.

Californians "can't" change federal law in a state initiative. But they can legalize conduct that is a federal felony as far as California law goes.

As everyone knows, many laws may be "on the books," but they are minimally enforced, if ever. In Washington, D.C., for example, adultery was a crime until recently, even when Newt Gingrich was cheating on his second wife. You know, when they "legalized" adultery in the District of Columbia, there was no outrage, or apparent change in sexual mores.

But despite all the adultery there used to be in Washington, D.C., no one can recall an arrest or prosecution for the crime. Now there are three different reasons for this. The first is that, even though adultery hurts society by breaking up families and hurting children, most people (including cops, prosecutors and judges) don't think it warrants criminal punishment. In that sense, it is like simple possession of marijuana in that a majority of people do not believe you should go to prison or jail if you possess -- even though the law says you can.

The second reason for the lack of arrests is that the police have more important things to do. Even if a cop had probable cause to make an arrest for adultery, he or she would not do it because it is unimportant.

The third reason is that there are not enough police to undertake any more than cursory enforcement. Assume that the Chief of Police said that she wanted to strengthen families by prosecuting adulterers. That's simply just hot air. She doesn't have enough cops to do it. She doesn't have the ability to get behind the closed doors.

The federal law, 18 U.S.C. 844, says that to possess any quantity of marijuana is a misdemeanor, with a minimum sentence of a fine of $1000, and potential imprisonment of up to a year. Yet of the 20 to 30 million Americans who each year use marijuana (and possessed it, even if it was for the moment they held a joint, a pipe, a vaporizer, or "an edible"), no more than a couple hundred persons were convicted of that federal crime -- and that is because they tried to bring it into the country, they tried to bring it onto an airplane or they did it in a National Park, on the Mall in Washington, or at the federal Wolf Trap concert venue. The odds of the average pot smoker being convicted in federal court are smaller than 1 in 100,000.

Or another way of looking at it is that under federal law, in a practical sense, it is already legal to possess marijuana. I repeat, in a practical sense, it is already legal, as far as federal law goes, to possess marijuana. But not in a psychological sense; not at all in the sense of guaranteeing liberty.

The federal government is fairly zealously prosecuting large scale marijuana growers. But if you were growing 25 square feet of marijuana in California right now, and you were not selling it, your risk of being prosecuted by the federal government is pretty slim. They are looking at much bigger growers than that. Your legal risk is from the officers and deputies who enforce the laws of California.

Essentially all three of the reasons that adultery was not prosecuted in Washington, D.C. would be applicable to California if Proposition 19 passed, and that left only federal agents to prosecute marijuana possession and personal cultivation -- it is not that important, and there are not enough of them.

What really "can't" happen is that the federal government will enforce those laws in any meaningful way! Marijuana will be legalized on the books of California law and in the practice of federal law.

There is another important part of Proposition 19 which would allow cities and counties to license and tax commercial cultivation and distribution of marijuana. This kind of commerce is covered by the Controlled Substances Act. This is the law that was upheld by the U.S. Supreme Court in Gonzales v. Raich in the medical marijuana context. Because the number of cities and counties is small, I believe the Federal government could relatively easily sue them and obtain an injunction to prevent them from actually issuing such licenses. A person who attempted to go into the commercial cultivation and distribution business would not be able to get a valid state license in such circumstances.

Essentially this kind of commercial cultivation distribution is likely to continue under the guise of the pseudo-medical dispensaries that operate in many parts of California -- until the boundaries of federal-state regulation are further clarified.

What is to me most strange about Mark Kleiman's op-ed is that the regime of non-commercial, grow-your-own marijuana is the one that he endorses in his books and articles is the likely outcome of passing Proposition 19.

Harvard Professor Jeffrey Miron, the brilliant libertarian economist, advised the Tea Party, in a short a National Review Online column, in June 2010, to take the libertarian path on drug policy.

Amen. Drug prohibition is the paradigmatic government program that fails to deliver what it promises. It doesn't reduce crime, it creates crime. It doesn't protect health, it makes drug use more dangerous. It doesn't hurt drug traffickers, it guarantees that the successful ones will be rich.

Drug prohibition depends on the belief that drugs are substances so powerful that mere mortals cannot control their use of them. It is the faith in the supremely dangerous, seductive power of drugs, and the fear that any child is at risk of being seduced, that sustains the prohibition edifice.

Read John Kelly's column Aug. 4 in The Washington Post! It is a hilarious send-up of the usual hysterical anti-drug column! This is a columnist who is squeaky straight, spending half the year trying to raise funds for the YMCA summer camp program!

Tuesday, August 03, 2010

This morning at 11 a.m., President Obama signed S. 1789, the Fairness in Sentencing Act, in the Oval Office, reported by The Caucus blog at The New York Times. The House passed the bill on July 28 on a voice vote. I have been working for a bill on this subject since 1993.

This bill raises the quantities of crack cocaine that trigger the mandatory minimum sentences for trafficking enacted in 1986 (from 5 grams to 28 grams and from 50 grams to 280 grams) creating a ratio of cocaine to crack of 18 to 1 instead of 100 to 1. The Act also repeals a mandatory minimum sentence for simple possession of 5 grams of crack or more -- enacted in 1988, provides various directives to the U.S. Sentencing Commission regarding drug sentencing, calls for a review of the effectiveness of drug courts, and raises the fines that can be imposed for the crime of drug trafficking.

In 1986, I was counsel to the House Judiciary Committee, and played a key role in the creation of that law. A person who is convicted of distributing (or is part of a conspiracy to distribute) at least 500 grams of powder cocaine (a little more than a pound) or 5 grams of crack cocaine (a very small amount -- the weight of 5 packs of artificial sweetener or one nickel must be sentenced to at least 5 years (up to 40 years) in Federal prison. A person who is convicted of distributing (or is part of a conspiracy to distribute) at least 5000 grams (5 kilograms or about 12 pounds) of powder cocaine or 50 grams of crack cocaine (the weight of a typical candy bar) must be sentenced to at least 10 years (up to life imprisonment) in Federal prison. These sentences are triggered by different quantities for other drugs -- all relatively small quantities. In 1986, the federal prisons held 36,000 prisoners. This week there are over 211,000 federal prisoners, more than half of them there on drug charges, and a large fraction serving unjustly long sentences. Over 70 percent of the prisoners are serving sentences longer than 5 years.

The quantities that trigger mandatory sentences are mistakenly small. Contrary to the intent of Congress, they do not indicate that a trafficker is a major drug trafficker. A major cocaine trafficker organizes transactions in hundreds and thousands of kilos. One thousand kilos is one metric ton, which equals one million grams. The U.S. consumes about 300 metric tons of cocaine annually.

Unfortunately, year after year about 80 percent of the federal crack cocaine defendants are African-American. About 8 or 9 percent of the defendants are white. The racial disproportionality is utterly unwarranted.

Perhaps just as scandalous is that most federal drug defendants are neighborhood-level dealers, not the national level or international level dealers who should be the primary target of federal drug enforcement efforts. If most federal drug convicts were trafficking in hundreds or thousands of kilos, and operating at a very high level, no one would concerned about their race or ethnicity.

I have been working to repeal or reform the mandatory minimums I helped write since I left the Judiciary Committee in January 1989. I helped found Families Against Mandatory Minimums in 1991. In 1993, I wrote a draft of legislation to eliminate separate crack cocaine quantities so that at least crack and powder would be equal at the 500 and 5000 gram levels that was introduced by U.S. Rep. Charles Rangel (D-NY), the former Chairman of the House Select Committee on Narcotics Abuse and Control. He called the bill the "Crack Cocaine Equitable Sentencing Act." With that title, I thought it would never pass, and it never did.

Beginning in 2005, the Open Society Policy Center assembled a coalition that I joined along with Drug Policy Alliance, the ACLU, the Sentencing Project, Families Against Mandatory Minimum Sentences, the Methodist General Board of Church and Society, the National Association of Criminal Defense Lawyers, the NAACP, the Leadership Conference on Civil Rights, and many other groups including SSDP and LEAP, to push Congress to end the crack - powder disparity. For the coalition I drafted a bill I called the "Cocaine Kingpin Punishment Act" which eliminated the crack provisions and raised the fines that could be imposed against convicted traffickers.

In 2007, Sen. Joe Biden introduced a bill, S. 1711, with "cocaine kingpin" in the title and included some of the provisions of my draft. Senators Barack Obama and Hilary Clinton cosponsored his bill. There was a day of hearings on the bill, but no action. Rep. Sheila Jackson Lee introduced a companion bill in the House.

In 2009, Senator Richard Durbin (D-IL) introduced a revision of the Biden bill, now called the Fairness in Sentencing Act. He worked with Senators Jeff Sessions (R-AL) and Orrin Hatch (R-UT), who had expressed concern about the racial disparity in cocaine prosecutions, and what Sen. Hatch referred to as the "girl friend problem" of sentencing co-conspirators like principals. With Sessions and Hatch, Durbin was able to reach the compromise on 28 and 280 grams (18 to 1) and get it out of the Senate Judiciary Committee and out of the Senate on a voice vote.

I was very pessimistic that the House Democratic Leadership would bring the bill to the floor and risk a recorded vote. But House Majority Whip James Clyburn (D-SC) worked to get it to the floor. I believed that House Republicans would resist the bill as "soft on drugs," as Rep. Lamar Smith (R-TX), the ranking Republican on the Judiciary Committee, argued on the floor.

But I was wrong. The bill was brought to the floor, and Representatives James Sensenbrenner (R-WI) and Dan Lungren (R-CA) supported the bill. There was no record vote.

Since I did not think the bill would pass, and it did, my thoughts are that this is the best our political system can produce right now.

Republican support creates a political opening for President Obama to begin to issue orders commuting some sentences that are especially unjust -- if the Pardon Attorneys office is reorganized and expanded.

Ideally the Justice Department will begin more careful oversight of U.S. Attorney offices to assure that they focus on high level cases.

Wednesday, July 21, 2010

In John McWhorter's op-ed in The New York Times July 21, 2010, about who identifies himself or herself as a "progressive," a "liberal," or a "conservative," and what progressive means, he says

I am often called a “black conservative” because, despite being a pro-choice Obama voter who opposes the war on drugs, I consider racism an inconvenience to be conquered.

I was struck that of the various potential characterizations he might have chosen -- vegetarian, environmentalist, human rights activist, anti-war, pro-education, pro-health, etc. -- he chose abortion, Obama, racism, and opposing the war on drugs.
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Wednesday, July 14, 2010

Stanford Law Professor Henry Greely has a very thoughtful article about brain enhancement on the Cerebrum website of the Dana Foundation.

"Who gets to decide whether you can tinker with your brain?" is a question that goes to the heart of drug policy. Greely's commentary helps tease out the question of whether brain enhancement might be a good idea.

He points out that use of tools and use of language (such as learning to read and having access to books) changes our brains, and are enhancements. It is interesting to think about Cannabis use as a brain enhancement rather than simply a tool for producing a euphoric effect. Isn't the charge that drug use "changes our brains" -- without considering the positive ways that they could be changed (and are changed by our daily experience) just so much fear-mongering?

He has a lovely discussion that takes down the common criticisms of brain enhancements as cheating, unfair, or unnatural.

Greely also thoughtfully dissects the difference between brain enhancements and the use of, say steroids, in a sports competition.

If you think about drug use -- is it a good idea or not? is it moral? what you are using drugs for? -- this is an article that will stimulate you and, perhaps, enhance your drug use.

Adam Isacson has an excellent analysis of the "success" of Plan Colombia, whose 10th anniversary is this week. Isacson, who moved from CIP to the Washington Office on Latin America this Spring, observes that when Americans are praising the program, it is as reliable as students grading their own papers.

How plausible was the Superman story?How plausible is it that listening to certain "tones" on earphones or a headset can get you "high" -- that is, "using 'digital drugs'"? I don't know, give me a decent theory and perhaps it is plausible. Here is link to BinauralBeats.us. Now, how plausible is the warning that listening to such tones is dangerous?

"I think it's very dangerous," said Karina Forrest-Perkins, chief operating officer of Gateway to Prevention and Recovery in Shawnee [OK]. While there are no known neurological effects from digital drugs, they encourage kids to pursue mood altering substances, she said.

Even if it can't get you high, it is dangerous because the website encourages thinking about getting high. Here's another website that also has pictures of Cannabis ("Legal Bud"), pills and hashish ("Legal Hash"). These scam ads have been in magazines for decades, and on the Internet since websites became accessible. If we conclude that simply thinking about drugs and getting high is "dangerous," then what is the content of our anti-drug education programs?

Once again, adults seem to have lost their minds in the face of "dangers!" How many kids are killed and injured in Oklahoma every year in connection with football or hunting? I can confidently assert -- without fear of being disproved -- that the number is greater than that of kids who are injured from the combined dangers of "digital drugs," websites promoting drugs, and marijuana.

And, of course, thinking about getting high is deviant behavior in our culture -- unless you like baseball, and watch the Major League Baseball All-Star Game on Fox, sponsored by Anheuser-Busch and Budweiser. No one is going to try to shut this website down!

I suspect that "Digital drugs" are another species of drug scares that are more scare than drugs. In the early 1980s, I set up Congressional hearings on "Look-alike drugs." These were over-the-counter drugs packaged in capsules or tablets to look like commonly-abused stimulant controlled substances. It was already a crime to manufacture or distribute "counterfeit" controlled substances. But the fact that some people were trying to make money selling non-controlled substances as the real thing was enough for stirring up talk of epidemics, etc. Selling these pills was a scam. (When I was an assistant public defender, one of my first jury trials was defending a bartender in a biker bar who sold counterfeit "speed" to an undercover State Trooper in the men's room. We lost.) Of course there was a danger there -- since the counterfeits do not produce the intended effects, a not-too bright person might conclude that instead of having been burned, they should simply take more of the counterfeit pills, risking an overdose of the over-the-counter medication. But the anti-drug public relations consultants, ambitious reporters, and client-hunting drug abuse treatment experts were eager to trumpet an old scam with a new alliterative name, "look-alike drugs".

In the mid-1980s, "Designer Drugs" was another a catchy, public relations label for a logical consequence of prohibition -- but it was good enough to stimulate enactment of the Controlled Substances Analogue Act of 1986. This campaign was scary enough to inspire Congressman Dan Lungren (R-CA) to push this law which bans substances before they are invented, and once invented, criminalizing the makers and sellers before any evidence of the substances harmfulness was observed, reported or documented. It was the chemical equivalent of requiring a woman to have an abortion because she was impregnated by a "dangerous" man.

The anti-drug establishment is always looking for a scary brand for a "new" epidemic. In the 1990s, DEA and CBS News attempted to re-brand methamphetamine as "Nazi Crank" -- because it was synthesized using a process developed by German scientists in the 1930s to provide stimulants to soldiers, sailors and airmen during World War II. (The U.S. Army and Japan also provided methamphetamine to crucial personnel to help them stay awake.) "Wehrmacht Crank" was hardly as scary and politically-loaded as "Nazi Crank." A drug addict who can be prosecuted for selling "Nazi crank" is not just a bad guy or addicted guy, he is a certified demon.

News stories like this one just made URLs with words like digital drugs, or i-dose, a heck of a lot more valuable. Stay tuned, you will see this "breaking news" on your TV soon, and more stories in newspapers around the nation.

Wednesday, July 07, 2010

The Wall Street Journal has a front page story on the idiotic priorities of county sheriffs in California. They are facing enormous budget shrinkage: they are laying off deputies, closing floors of the county jail, eliminating patrols, eliminating major crimes investigators, letting convicted drunk drivers out of jail early (predicting that they will drink and drive and hurt people). But they are spending hundreds of thousands of dollars of their scarce local funds to cut down marijuana plants because the Federal government will give them grants to help cover some of the costs. Do they even arrest the marijuana growers who they say are dangerous fiends from the Mexican drug trafficking organizations? No. They make arrests only 10 percent of the time.

How does it make sense for law enforcement agencies to knowingly endanger public safety in order to cut down marijuana plants?

How does it make sense for the Federal government, which is going to spend more than $1.3 trillion this year that it has to borrow, to cut down marijuana plants?

This is the scenario: The U.S. borrows dollars from the Chinese to pay cops who can't catch criminals from Mexico to cut down marijuana in California that when used as intended won't hurt people as much as alcohol and drunk drivers.

Wednesday, June 30, 2010

The House Appropriations Subcommittee on Commerce, Justice, Science and related agencies has reported its bill for U.S. Justice Department Appropriations for FY 2011, with a summary here.

Let's try to keep in mind that the President's budget for FY 2011 is estimated to be in deficit by $1.342 trillion ($1,342,000,000,000)! This is spending by us that supposedly will be paid back by our children.

Total spending in the department would grow from $28,077,664,000 in FY 2010 to $30,031,638,000 in FY 2011. This is $295 million more than the President's request! Of course that fact -- planning to spend more than the Administration asked for -- is not new, but in these circumstances it is depressing that this habit appears to be unbreakable.

The biggest one-year growth is $638,126,000 for the Federal prison system. It would increase spending from $6,188,086,000 in FY10 to $6,826,212,000 in FY11.

However, the congressional earmarking of law enforcement spending is staggering! Look at this 38 page list of congressional earmarks for law enforcement.The Subcommittee approved $697,590,000 more for grant programs to state and local law enforcement agencies than was requested by the Administration, and $484,033,000 more than was spent in FY 2010.

This is a form of incumbent protection. Members go back to the voters and tell them that while local budgets had to be cut because revenues were down because the economy shrank and property values collapsed, "I was able to wangle money from Uncle Sam" to run our police department. I saved police jobs with money we don't have. This behavior, if by anyone other than a Member of Congress or Senator would lead to bankruptcy!

Oh, regarding a couple of law enforcement agencies:The FBI would get another $305 million to total $8,203,186,000, but that is $61 million less than the Administration asked for.

The DEA would get another $105 million to total $2,124,317,000, $5.8 million less than the Administration asked for.

On June 27, 2010 the Baltimore Sun reported that about thirty percent -- a very high proportion -- of rapes initially reported to the Baltimore police are classified as "unfounded." 30 percent is 5 times the national average. From 1995 to 2009, the number of rapes nationwide has declined by 8 percent. However, for the same period, in Baltimore the number has inexplicably declined by 80 percent!

Sun columnist Peter Hermann reports that this problem goes back to the 1960s and 1970s, and quotes Barry M. Baker, a retired Baltimore police lieutenant with 32-years in the police department that crime statistics in Baltimore are "pure fiction."

Wal-Mart is being sued in Michigan by a cancer survivor who is a Michigan-licensed medical marijuana patient who they fired after a positive result in a drug test, according to the Detroit Free Press.The Battle Creek Enquirer has a better story.

Joseph Casias, 30, who has survived sinus cancer but has an inoperable brain tumor, was fired after he was given a drug test in November 2009 after he twisted his knee at work. In 2008, Casias was one to two employess named, "Associate of the Year" out of 400 employees at the store.

Monday, June 28, 2010

< U.S. Rep. Sue Myrick (R-NC), the Ranking Republican member of the Subcommittee on Intelligence Community Management of the House Permanent Subcommittee on Intelligence, wrote to U.S. Homeland Security Secretary Janet Napolitano on June 23, 2010, to set up a Southwest Border Task Force to protect against what she fears is a potential Hezbollah alliance with Mexican drug cartels.

She reports that prisoners are being tatooed in Farsi to accompany drug-related tatoos, that Hezbollah tunnel-digging expertise is a logical threat for bringing drugs into the U.S. near San Diego, that Hezbollah could be a conduit for Afghan heroin and cannabis products to the U.S. via Mexico, and that Mexican cartels may be seeking to acquire Hezbollah bomb-making expertise leading to "Israel-like car bombings of Mexican/USA border personnel or National Guard units in the border regions."

Is this real? Or is this an effort to set up some pre-election drug-terror hysteria? The great thing about being on the Intelligence Committee -- you can't cite your sources, they're "top secret."

Saturday, June 26, 2010

Today, everyone recognizes that alcohol prohibition was a mistaken way to control abuse of alcohol. The consequences of alcohol misuse remains a major problem throughout the United States. But outside a few communities in Alaska, almost no one proposes we bring it back.

Many opponents of drug prohibition are committed to the principle that the use of drugs is not wrongful. An extension of that principle is that the illegal distribution of drugs to willing sellers -- if the drugs are not contaminated and of safe potency, and the buyer is an adult -- is not wrong. Thus many opponents of drug prohibition feel that the prosecution of marijuana distributors especially, and the distribution of psychedelic drugs like MDMA, LSD, mescaline, psilocybin mushrooms, ecstasy and related drugs is wrong. And probably some opponents of drug prohibition believe that many of those who are imprisoned for selling heroin or cocaine have been imprisoned wrongfully.

But Al Capone was sent to prison for violating the Internal Revenue Code. But his greatest crimes were murder. In addition, he engaged in extensive bribery and other serious crimes against individuals, the public order and the society.

When we contemplate the extradition of Christopher "Dudus" Coke, the leader of Jamaica's deadly Shower Posse, we need to keep in mind that he exemplifies a long line of criminals who have enriched themselves in the drug trade but committed numerous "genuine" crimes along the way.

The U.S. Justice Department should focus on drug criminals who use violence and bribery since they are subverting the government and the public order. They should not focus on medical marijuana dispensers, legitimate or not, who can be investigated and prosecuted for any violations of state law.

Friday, June 25, 2010

Arizona Governor Jan Brewer (R), running for re-election says that most illegal immigrants come to the country to bring illegal drugs. Her assertion is being challenged. If she is even partly correct, isn't one logical response -- if your goal is to minimize illegal immigration and get control of the border -- to regulate, tax and control the now illegal drugs?

The enormous profits of illegal drugs exceed the profits of any other kind of business that operate across the border. But Congress's prohibition policy restricts access to those profits to criminals. Because these profits are not taxed, the fiscal effects is that American taxpayers are subsidizing these crimes!

Certainly the public has a right to wonder what a post-prohibition regime of taxed and regulated drug distribution and use would look like. But as long as leading policy-makers insist on stupid slogans such as "the word legalization is not in my vocabulary," we can't seriously consider the alternatives.

Wouldn't those who say they oppose legalization actually be interested in a honest appraisal of actual legalization proposals, instead of their cartoonish vision of now illegal drug dealers still operating in alleys and abandoned buildings as legal drug dealers?

Tuesday, June 15, 2010

In August 1983, observing the manual eradication of coca bushes in Tingo Maria, Peru, a Member of Congress turned to me and said, "Now I know the meaning of the term, 'pissing into the wind.'"

It was twenty-seven years ago that I flew in a Peruvian Air Force transport plane to Tingo Maria, Peru, to inspect coca eradication programs funded by the U.S. taxpayers, while helping to staff a delegation of U.S. Members of Congress (the House Select Committee on Narcotics Abuse and Control, Chairman Charles Rangel (D-NY)). Today, the U.S. is still paying to eradicate coca there, The New York Times reported on June 14, 2010.

Look at the slide show and video that accompany the article.

As the Times story indicates, our policies and programs are still enriching terrorists, still adversely affecting the environment, and still terrorizing and impoverishing poor peasants. We are spending over $70 million per year there now. I have no idea how many millions, if not billions we have wasted over the past 27 years!

Sunday, June 13, 2010

Daniel Okrent, the author of Last Call, a new book on alcohol Prohibition, writes in the Week in Review in The New York Times, on June 13, 2010, about the 1920s arguments of business leaders to repeal Prohibition in order to tax alcohol in order to end the relatively new income tax.

Okrent's history is fascinating, but his reporting is seriously flawed. He lazily lays out a specious claim and then attacks supporters of the Tax and Regulate initiative as "indulging a fantasy of income tax relief emerging from a cloud of legalized marijuana smoke." Okrent does not identify anyone in California, or any supporter of the initiative, for making the kinds of extreme claim made on March 19, 1928 by Pierre S. DuPont about ending alcohol prohibition, "the revenue of the government would be increased sufficiently to warrant the abolition of the income tax and corporation tax." But Okrent acknowledged that in the first year of the repeal of alcohol prohibition, the federal taxation alone amounted to nine percent of total federal revenue!

He says some (anonymous) persons "even believe that a tax on marijuana, which could be legalized by California voters this November, could lead to a reduction in the state's income tax." What is so surprising about this shoddy piece is the Okrent served for three years as the Public Editor of The New York Times, charged with upholding the highest standards of journalism at The Times by flagging the failings of Times writers. One of those standards is to attribute ideas and claims. His current counterpart at The Washington Post, Ombudsman Andrew Alexander, for example, writes today in his column about this particular sin of journalism, anonymity.

No one who knows the size of government today is going to claim that the tax on marijuana is going to enable the abolition of the income tax. Okrent's column is the crudest journalistic sleight of hand.

Friday, June 11, 2010

The American edition of "The Candy Machine: How Cocaine Took Over the World" by Tom Feiling published in the U.K. by Penguin (2009) is coming out in the U.S. as "Cocaine Nation" published by Pegasus Books. Here's the review by the Guardian.

This book is a terrific overview of the drug prohibition phenomenon, focusing on cocaine. The history is rich and detailed, and almost encyclopedic.

Consider the crisis of violence and corruption raging across Jamaica right now. The government there is accused of killing scores of people in its attempt to capture Christopher "Dudus" Coke, the leader of the Shower Posse. Yet Tom Feiling writes about Coke's father, Lester "Jim Brown" Coke and the history of the Shower Posse and Jamaican politics as the cocaine traffic and its money became established in Jamaica. He reports on how U.S.-supplied weapons that helped tip the bloody Jamaican election in 1980 toward the U.S.-favored Edward Seaga became the armaments of the cocaine and crack dealing posses.

The crisis of violence and corruption in Mexico gets similar analysis.

The chapter on "Legalization" is thoughtful, and identifies numerous unlikely supporters, and examines the arguments of thoughtful opponents such Mark Kleiman.

This is a very up-to-date comprehensive examination of the current cocaine phenomenon.

The New York Timesreported on June 8, 2010, on its business pages how sales of an alcoholic beverage ("Smirnoff Ice") that one icing fool called a "pretty terrible" drink are growing because fraternity brothers -- those great judges of the next cool and sophisticated thing (after puking) -- supposedly started a drinking game, "icing" that has gone viral. If I approach you with a bottle of "Smirnoff Ice," and you don't have one, you "have" to go down on one knee and drink the whole thing down. But, if you have a bottle of Smirnoff Ice, then I have to drink BOTH of them. Cool! Cutting edge! And how do I learn this? Via Facebook and the Web.

Who benefits from spreading the idea that making your friends chug a disgusting bottle of booze they would not voluntarily drink is a good idea? The owners of shares in the world's largest spirits company, for sure, and booze retailers. Diageo, Inc., which makes "Smirnoff Ice" is raking in the dough as socially insecure fools get suckered by the "icing" fad.

Of course, an anonymous company spokesperson denied any involvement, according to The New York Times. But the Smirnoff home page says, "This summer Smirnoff will crash your party."

Diageo's shares listed on the New York Stock Exchange have been trading in the range of $60 to $70 per share since the beginning of the year. In 2009, Diageo's share performance was substantially above that of the S&P 500, which was performing very well. But in February 2010 -- shortly before the "icing" craze appeared "out of nowhere," Diageo's shares plummeted. Since early March, Diageo's shares have been trading below the S&P 500, except for a couple of weeks at the end of March.

The impunity of the criminal organizations in Jamaica is tied to their political power, and their power as an alternative law enforcement agency to corrupt or brutal police. See a Jamaican view of how entrenched are the organizations and their "big man" from the leading newspaper in Kingston, the Jamaica Gleaner.

It is important to recognize that this type of capture of the state by powerful crime organizations through the assumption of the responsibilities of the state for security, conflict resolution and social welfare has been a central problem in Colombia, remains a central issue in Mexico, is rampant in the favelas in Brazil, and is typical of the entrenched organized crime organizations in Naples and Sicily.

The New York Times front page, column one story on June 6, 2010 "With U.S. Aid, Warlord Builds Afghan Empire" reveals the close ties that a U.S./NATO security contractor, Matiullah Khan, has with the opium business. The state is weak, and security and justice become responsibilities and opportunities for criminal organizations. The elaborate formal rules to separate a politician's political powers from his business interests may have their legal counterpart in other nation's but there is no cultural enforcement of the separation. And if we are talking about an unelected "war lord" or "big man," no one imagines that there is any separation between these interests.

Ethan Nadelmann provides an excellent overview of the factors underlying the violence in Jamaica in a May 27, 2010 interview on The Kojo Nnamdi Show on Washington, DC's WAMU-88.5 FM. Ethan's interview starts at about 07:00 minutes and lasts for 12 minutes.

Jamaican authorities began an operation on May 21 to seize Christopher Coke, a.k.a. "Dudus," widely believed to be a "drug lord" who had been fighting extradition to the United States. The operation was resisted, and 60 civilians and officials were reported killed by May 27. The Jamaican government had been resisting the extradition, he was being represented by former top government officials, and the Jamaican government hired a major Washington, DC law and lobbying firm to help fight the extradition. See a Times of London account of his indictment in the U.S. here.Coke's organization, the Shower Posse, is one of a number of entrenched drug trafficking and crime organization in Kingston, Jamaica and various U.S. cities. The story of the rise to power of these posses is told in the excellent ethnographic study, Born Fi' Dead, by Laurie Gunst, who earned a Ph.D. in History from Harvard University. (The book was one of the principal texts in the course I taught in 1996, Violence and Values, for the Washington Lutheran College Program.)

The posse's political power and initial stock of weapons arose as the U.S. CIA meddled in Jamaican politics in the October 1980 election to support the campaign of Edward Seaga's party, the Jamaican Labour Party, to win the Prime Minister's seat from Michael Manley's more leftist Peoples National Party. The posses played critical roles in that election, and soon were deeply enmeshed in the cocaine traffic to the United States, and the distribution of crack cocaine in American neighborhoods.

Today, Christopher Coke's posse is a major prop of political power for current Jamaican Prime Minister, Bruce Golding -- which he denies.

Friday, June 04, 2010

Retired Justice David Souter spoke at the Harvard University commencement recently after receiving an honorary degree.

He shared a very important challenge to the notion that the Supreme Court can and should always decide cases simply by fairly reading the words of the Constitution, and knowing what the men in Philadelphia in September 1787 intended. Simple.

I think there are quite a number of things wrong with that "original intent" claim, even though it is very appealing.

However, on its face, I like the idea that the Constitution does not change unless it is amended. For me the most powerful instance of the improper evolution of the meaning of the Constitution has been the reworking of the commerce clause, Article I, section 8, clause 3

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

This clause is the constitutional foundation of the Controlled Substances Act, and the meaning of this clause, or the extent of its reach, was the issue in the case of Gonzales v. Raich. In that case, a seriously ill California woman who used California-grown marijuana successfully to treat her life-threatening maladies, upon the recommendation of her California doctor, pursuant to California law sued the Attorney General to enjoin the Justice Department from prosecuting her and her caregivers who grew marijuana for her in California without any compensation. She said that the circumstances of her marijuana possession were not commerce and were not commerce with a foreign nation, an Indian tribe or among any states.

In advance of the argument in Raich, I moderated a forum on the case sponsored by the SSDP Chapter at Georgetown University Law Center and read all of the many briefs filed in the case. You could not call her possession and use of marijuana "interstate commerce" if there were no money involved and no other states involved. With these facts, her circumstances were outside Congress's constitutional power to regulate. I was convinced that it would be wrong to apply the interstate commerce clause to Angel Raich.

But the Supreme Court ruled against Angel Raich in a six to three decision. The dissenters were Justices O'Connor and Thomas, and Chief Justice Rehnquist. The majority explained that to effectively regulate the true interstate commerce in marijuana, Congress needed the authority to regulate any commerce that might have some effect on that commerce. Allowing all the Angel Raich's of California to obtain and use marijuana would have an impact on the other interstate and foreign commerce in marijuana, even if their use were to reduce that illegal commerce.

I was disappointed and acquired a greater sympathy to the original intent argument.

However, as Stanford historian Jack Rakove has observed, to understand the original intent of the Constitution, you need to look at the volumes of writing that accompanied the arguments in each state on whether to ratify the Constitution. And he notes that the meanings began to change. You need to read not only James Madison's Journal of the Constitutional Convention, and the Federalist Papers of Madison, Hamilton and Jay who supported the Constitution, but the arguments of those against the Constitution. And then you need to read the first court opinions that attempted to interpret the Constitution.

As Justice Souter points out very effectively in his speech, the Solicitor General in the Pentagon Papers case of 1971, when faced with the simple words, "Congress shall make no law," effectively argued that nevertheless that Congress can indeed make a law.

But interpreting the "meaning" or "intent" that a legislative body had when enacting a law is a necessary but tricky business. I spent nine years writing law as staff to the U.S. House of Representatives. In some instances the words in the law are words I chose. In many instances, most Members of Congress had no idea about the details of the law. I was on the Hill in the era in which computers were introduced. Thus staff had the ability to generate enormous bills on behalf of the Congress with thousands of provisions that appeared to be seamlessly harmonious. The old technology of scissors, tape, typewriters, pens and pencils was largely abandoned in the processing of amendments.

I like the idea that judges look at the words, but I know that too often the word choice was accidental.

I wonder to what degree, in the crunch to get opinions completed in the hours before the Supreme Court adjourns, the wrong word or phrase gets used.
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Michael Gerson's thoughtful commentary in his column in The Washington Post on June 4, 2010 on human nature and virtue uses the fall of Rep. Mark Souder (R-IN) as its "text." Rep. Souder, former chair of the House Government Reform Committee's Subcommittee on Criminal Justice, Drug Policy, and Human Resources announced on May 18, 2010, his imminent resignation from Congress acknowledging his long-term affair with a part-time staffer.

Gerson notes that he and Souder both worked for U.S. Senator Dan Coats (R-IN). Gerson went on to be a speechwriter for President George W. Bush. His regular column in The Washington Post often addresses "values" issues in the political realm.

In July 2009, Souder was the Republican lead on the amendment to the HHS appropriation (H.R. 3293) to try to continue the ban on Federal funding of needle exchanges to fight the transmission of HIV and Hepatitis by needle sharing among injecting drug users. His amendment was narrowly defeated, 211-218.

Certainly when it came to the common foible of young Americans using, possessing or distributing an illegal drug, Souder exhibited neither the humility, nor the mercy that Gerson thinks Rep. Souder somehow exemplified.

I do not celebrate Souder's fall due to his hypocritical indulgence in his sexual appetite (well analyzed in Gerson's column by means of long quotation from C.S. Lewis). But I am greatly relieved that national policymaking is now free of Souder's indulgence in the greater sins of "the pleasure of power," and being a "self-righteous prig" exemplified by the counterproductive anti-drug policies that he authored and fought for.

Thursday, June 03, 2010

Gen. Barry McCaffrey, who is an embarrassment to many of the faculty of the U.S. Military Academy at West Point, presented this Powerpoint slide at an anti-marijuana conference in California on May 10, 2010.

On page 7 he notes the terrible role of Mexican criminal gangs in the marijuana trade. But brilliant military tactician that he is (a "hero" general of the first Gulf war), this is one of his arguments against the initiative in California to control and tax marijuana to get the criminals and violence out of the business.

If you are not already familiar with Gen. McCaffrey's work from 1996 to 2000, I think you will be amazed by these 16 pages of non sequiturs.

He proves, for example, that marijuana does not have any scientifically proven medical value by quoting two court cases and a 40-year old statute.

William Finnegan has a terrific report from Michoacan, a state in Mexico that has long been a source of drugs in The New Yorker magazine, May 31 2010. One of the newer cartels, the notoriously bloody La Familia Michoacana, has penetrated the society and the government. He describes how the organization has "captured" the state, not that the state is a "failed" state as former U.S. "drug czar" Barry McCaffrey has written.

This is a very carefully researched and very disturbing view of the situation in Mexico.

Tuesday, May 25, 2010

Gene Healy of the Cato Institute cleverly questions President Obama's moral authority to oppose drug law reforms that would stop prosecuting people who use drugs, writing in the Washington Examiner.But he frames this in an exaggerated way:

The president lacks the moral authority to lock people up for behavior he engaged in as a young man.

First, this cannot be the moral standard for law enforcement personnel in general. If a teenage boy engaged in shoplifting, vandalism, drunk driving, and other legal violations, that boy now an adult does not lack the moral authority to arrest or prosecute teenagers or adults for those crimes, now recognizing the wrongfulness of those acts.

Second, the President is not actually locking up anybody. The enforcement of the law is the responsibility of law enforcement officers, and we might be upset if the President announced that he was not going to enforce laws that we think make sense.

However, the key point is that using drugs is not wrongful. No person is injured. No one is endangered, other than oneself -- and the danger could be compared to skiing, sky diving, mountaineering. Using drugs is not the failure to do a duty like paying taxes. The state lacks the moral authority to punish this conduct.

This does not mean that drug use in the wrong circumstances, such as when operating a vehicle, or when one has a duty or responsibility to be sober, is not an offense. Improper drug use is a special case. Of course, our drug laws are not written to prosecute those special cases, and most prosecutions for drug possession have nothing to do with such special cases.

There is no moral authority for arresting or prosecuting a person for conduct that is not wrongful -- whether the President did those things in the past or not. Perhaps what we need to recognized is that Obama's comments about his adolescent drug use acknowledge that absence of wrongfulness. That is what is troubling now that his Administration wants to continue to support morally unjustifiable prosecutions.
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